Judicial Separation Flashcards
Pursuant to the Judicial Separation and Family Law Reform Act 1989 (hereafter the 1989 Act), a decree of judicial separation is granted on certain listed grounds. The decree of judicial separation does not dissolve the marriage but removes the legal obligation on the spouses to cohabit.
Judicial Separation
Pursuant to the Judicial Separation and Family Law Reform Act 1989 (hereafter the 1989 Act), a decree of judicial separation is granted on certain listed grounds. The decree of judicial separation does not dissolve the marriage but removes the legal obligation on the spouses to cohabit.
Judicial Separation
POD v AOD
Where parties had entered into a valid separation agreement, they were subsequently precluded from seeking a decree of judicial separation. Because a separation agreement is much like a contract.
However, they can seek a divorce.
Sections 5 and 6 of the 1989 Act required the solicitors acting for the applicant and respondent to:
(a) Discuss with the client the possibility of reconciliation and supply the names and addresses of persons qualified to help effect a reconciliation;
(b) Discuss the possibility of engaging in mediation to help effect a separation on an agreed basis and supply the names and addresses of persons qualified to provide a mediation service;
(c) Discuss the possibility of effecting a separation by way of a separation deed or written agreement.
Since the Family Law Act 2019, s 2(1) of the 1989 Act now lists five grounds upon which a decree of judicial separation can be granted:
- That the respondent committed adultery.
- That the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent.
- That there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application.
- That the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application.
- That the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.
Adultery
Section 2(1)(a)
The applicant can rely on adultery committed by the respondent in seeking a decree of judicial separation.
Cannot rely on it under Section 4(1) if the spouses have lived with each other for more than 1 year AFTER it became known to the applicant that the respondent had committed adultery.
However, they can still say that it was behaviour they could not be expected to continue living with under section 2(1)(b) as one of the factors that the applicant may rely on.
The relevant date after which time elapses is when the adultery became known to the applicant rather than the date of the adultery.
H v H
ADULTERY UNDER SECTION 2(1)(A)
explained the proofs necessary to ground an application based on the ground of adultery as follows:
On a charge of adultery for a petitioner to succeed it is not necessary for her to prove actual sexual intercourse or adultery by the alleged offender. This fact is inferred from circumstances which lead to it by fair inference as a necessary conclusion, when adultery will be presumed, or taking all the evidence into account, the circumstances are sufficient to lead the guarded discretion of a reasonable man (to the conclusion) that adultery took place.
Onus of proof
In giving examples of whether adultery may be presumed, Ellis J referred to a married man having spent the night with a woman in a brothel or with a woman other than his wife in a hotel bedroom. Upon the presumption of adultery, the onus shifts to the respondent to prove that no adultery occurred. Should the respondent deny that adultery has taken place, the applicant must prove it. If the spouse admits to the act of adultery and this is considered a credible admission by the court, then a decree of judicial separation can be granted
D v D
BEHAVIOUR UNDER SECTION 2(1)(B)
ADULTERY UNDER SECTION 2(1)(A)
the husband sought a decree of judicial separation on two grounds; first, wife had behaved in such a way that he could not reasonably be expected to live with her and secondly, pursuant to s.2(1)(f), on the basis that the marriage had broken down to the extent that the court could be satisfied in all the circumstances that a normal marital relationship did not exist between the spouses for a period of at least one year immediately preceding the date of the application.
The wife sought a decree of judicial separation on two grounds; first, pursuant to s 2(1)(a) of the 1989 Act on the basis that the husband has committed adultery and second, pursuant to s 2(1)(b) on the basis of the husband’s unreasonable behaviour.
The husband had conducted a number of extra-marital affairs. The wife was aware of some of these affairs.
the husband essentially relied on two broad allegations; first, that the wife spent excessively during the marriage and second, that the wife struck him on two separate occasions during the marriage. The Court held that the husband’s assertion of excessive spending on the part of the wife was impossible to sustain. With regard to the other allegations, the wife accepted that she struck the husband on two separate occasions. However, the High Court held that those incidents, viewed in context of the husband’s repeated and admitted infidelities, do not support the grant of a decree based on the conclusion that such behaviour made it unreasonable to expect the husband to live with her.
On the basis of the husband’s admission of repeated and continuing adultery, the wife was held to be entitled to a decree of judicial separation under s.2(1)(a) of the 1989 Act and further in light of husband’s behaviour, she was also entitled to a decree under s.2(1)(b) of the 1989 Act.
Dyson v. Dyson: English case 1953
BEHAVIOUR UNDER SECTION 2(1)(B)
it was explained that the conduct of a respondent must be “so grave and weighty as to make married life quite impossible”. This ground replaces cruelty which was a ground for granting a decree of judicial separation for divorce a mensa et thoro.
Husband was harassing and stalking wife.
R v. R [2006] 2 ILRM 467
BEHAVIOUR UNDER SECTION 2(1)(B)
husband guilty of “sustained verbal abuse of a sexualised nature” against the wife in the presence of the children which was intended to and did seriously demean her. The Court also accepted that there was “some serious physical violence” during the marriage. The Circuit Court granted a decree of judicial separation to the wife on the grounds of the husband’s unreasonable behaviour
Desertion
Desertion occurs where one spouse leaves the family home in the absence of reasonable cause and without the consent of the other spouse, with the intention of living apart permanently. Desertion also includes “conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.”
Under s 2(1)(c) of the 1989 Act, there must have been a “continuous” period of desertion. Section 2(2) of the 1989 Act (as amended by the Family Law Act 2019) provides:
In considering for the purposes of subsection (1) of this section, whether –
(a) in the case of paragraph (c) of that subsection, the period for which the respondent has deserted the applicant, or
(b) inthecaseofparagraph(d)ofthatsubsection,theperiodforwhich the spouses have lived apart,
has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any two or more periods (not exceeding 6 months in all) during which the spouses resumed living with each other, but no such period or periods during which the spouses lived with each other shall count as part of the period of desertion or the period for which the spouses have lived apart, as the case may be:
Provided that this subsection shall only apply where the spouses are living apart from each other at the time the application is made.
P v. P (
the wife in desertion as she had failed to prove that her departure from the family home has been caused by the husband’s cruelty and violence.
When parties marry they marry for better or worse. This, as I understand it, includes accepting quirks and difficulties in the character of the other marriage partner. To establish “just cause” for leaving the matrimonial home the partner who has left must establish some form of serious misconduct on the part of the other partner. Such conduct must, as Lord Asquith said: …exceed in gravity such behaviour, vexatious and trying though it may be, as every spouse bargains to ensure when accepting the other “for better or worse”. The ordinary wear and tear of conjugal life does not in itself suffice.
“although the parties lived together, and indeed still live in the same house, they effectively lived separate lives for a number of years with little or no real communication between them.”
Desertion may be deemed to have ceased on a number of grounds:
if the parties resume cohabitation,
that the spouse in desertion wishes to return,
where the spouse who has been deserted consents to the desertion and finally,
where just cause arises post-desertion.
